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Updates on Untimely Filed Extension of Stay and Change of Status Requests

USCIS issued policy guidance to address when USCIS may, in its discretion, excuse an untimely filed extension of stay or change of status request.

What is the General Rule for Extension of Stay and Change of Status Requests?

If eligible, certain nonimmigrants present in the United States, or their petitioners, may request an extension of their admission period to continue to engage in those activities permitted under the nonimmigrant classification. Certain nonimmigrants present in the United States, or their petitioners, may also seek to change their nonimmigrant status to another nonimmigrant classification if they satisfy certain requirements.

In general, USCIS does not approve an extension of stay or change of status for an individual who failed to maintain the previously accorded status or where such status expired before the filing date of the application or petition. However, under certain circumstances, USCIS may, in its discretion, excuse the failure to timely file extension of stay of change of status requests.

What are the USCIS’ Updates on the Untimely Filed Extension of Stay and Change of Status Requests?

USCIS has clarified the circumstances when USCIS may, in its discretion, excuse the failure to file before the period of authorized status expired. USCIS may excuse such untimely requests where the requester demonstrates within the extension of stay or change of status request that:

  • The delay was due to extraordinary circumstances beyond the person’s control;
  • The length of the delay was commensurate with the circumstances;
  • The individual has not otherwise violated their nonimmigrant status;
  • The individual remains a bona fide nonimmigrant; and
  • The individual is not the subject of removal proceedings and, in the case of extensions of stay, is also not the subject of deportation proceedings.

Examples of what USCIS considers extraordinary circumstances beyond the control of the person may include:

  • Where the individual remained in the United States after the expiration of the period of admission due to a slowdown or stoppage of work involving a strike, lockout, or other labor dispute; or
  • Where the primary reason for the late filing is the inability to obtain a certified labor condition application or temporary labor certification due to a lapse in government funding supporting those adjudications.

The approval of an untimely filed application or petition to extend a nonimmigrant’s stay is effective as of the date of the expiration of the prior nonimmigrant admission period. Also, the approval of a late filed change of status application takes effect on the approval date. USCIS considers the applicant or beneficiary of an approved untimely change of status request to have maintained lawful status during the period USCIS excused.

Visit here for the USCIS’ original announcement.

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